IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 97-10442

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIE ANTOINETTE OATES,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for the

Northern District of Texas

________________________________________________

September 4, 1997

Before GARWOOD, DEMOSS and PARKER, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Marie Antoinette Oates (Oates), convicted of bank

fraud pursuant to her guilty plea, was sentenced to 15 months’

imprisonment with 5 years’ supervised release, assessed $100, and

ordered to make restitution in the amount of $9500. Oates appeals

the term of her imprisonment. We affirm.

Facts and Proceedings Below

This appeal involves a singularly offensive crime. In the

summer of 1996, Oates, a 25-year-old resident of Amarillo, Texas,

was hired to serve as “companion” to Margaret E. Mills, an 86-yearold female suffering from Alzheim er’s Disease. Mills, fortunate2

enough to enjoy the continued support of her son Robert,

nevertheless fell victim to what can only be described as the

unadulterated cruelty of the very woman employed to care for her in

the autumn of her life. Oates, whose conception of succor

apparentl y included stealing money from those most vulnerable in

our society, was arrested after attempting to negotiate a $50,000

time deposit agreement (certificate of deposit) in Mills’ name. On

three prior occasions, Oates had made unauthorized withdrawals from

accounts in Mills’ name totaling $9500.

The facts are no less disconcerting when couched in the

language of the factual resume to which Oates agreed under oath

when her guilty plea was accepted:

“On three separate occasions, the defendant fraudulently

obtained funds from Margaret Mills’

. . . by preparing an

account debit, presenting the debit ticket to the teller

and receiving the drawn fun ds. The defendant withdrew

funds in the same manner on September 9, 1996 in the

amount of $4,000.00, on September 16, 1996 and received

$2,500.00 and on September 18, 1996 and received

$3,000.00.

On October 30, 1996, the defendant went to Boatmen’s

First National Bank and attempted to negotiate a $50,000.00 Time Deposit Agreement that had been issued to

Margaret E. Mills or Rob O. Mills. The police posed as

bank employees and apprehended the defendant after she

signed the $50,000.00 negotiable instrument (time deposit

agreement).”

Oates was indicted by a federal grand jury on November 26,

1996, for violating 18 U.S.C. § 1344, the federal bank fraud

statute. On February 10, 1997, Oates pleaded guilty to the onecount indictment before the United States District Co urt for the1 The indictment reads as follows:

“ INTRODUCTION

1. At all times material to this indictment First Bank

Southwest, Amarillo, Texas (hereinafter ‘FBS’) and Boatmen’s First

National Bank, Amarillo, Texas (hereinafter ‘BFNB’) were financial

institutions with deposits insured by the Federal Deposit Insurance

Corporation.

2. Beginning on or about September 9, 1996 and continuing to

on or about October 30, 1996 in the Amarillo Division of the

Northern District of Texas and elsewhere the defendant, MARIE

ANTOINETTE OATES, devised and intended to devise a scheme and

artific e to defraud and to obtain money and funds owned by and

under the custody and control of FBS and BFNB by means of false and

fraudulent pretenses, representations, and promises, well knowing

at the time that the pretenses, representations, and promises would

be and were false when made; the scheme and artifice so devised and

intended to be devised being in substance as follows:

3. It was part of the said scheme and artifice to defraud

that:

a. Defendant MARIE ANTOINETTE OATES was employed as a

companion for Margaret E. Mills.

b. Defendant MARIE ANTOINETTE OATES, in her position as a

companion to Margaret E. Mills, had access to various personal

records and documents of Ms. Mills.

c. Defendant MARIE ANTOINETTE OATES, on three separate

occasions, fraudulently o btained funds from Margaret E. Mills’

Checking Account Number 601118041 held at FBS, Amarillo, Texas, by

preparing an account debit, presentin g an FBS teller with the

debit, and receiving the withdrawn funds. The withdrawals totaled

$9,500.000.

d. On or about October 30, 1996, Defendant MARIE ANTOINETTE

OATES attempted to negotiate a $50,000 Time Deposit Agreement

issued by BFNB to Margaret E. Mills or Rob O. Mills by presenting

such to a BFNB employee.

COUNT 1

1. The Grand Jury realleges all of the allegations contained

in the Introduction of the Indictment as if fully set forth herein.

2. On or about September and October, 1996, in the Amarillo

Division of t he Northern District of Texas, defendant, MARIE

ANTOINETTE OATES, knowingly executed and attempted to execute the

scheme and artifice to defraud and to obtain money and funds by

means of false and fraudulent pretenses, re presentations and

promises, in that the Defendant attempted to negotiate at Boatmen’s

F irst National Bank, Amarillo, Texas a $50,000.000 Time Dep osit

Agreement issued to Margaret E. M ills or Rob O. Mills; and the

Defendant caused funds to be withdrawn from the Checking Account of

3 N orthern District of Texas, Amarillo Division. 1 FollowingMargaret E. Mills at First Bank Southwest, Amarillo, Texas, on at

least three separate occasions withe the total amount paid by FBS

to the Defendant exceeding $9,500.00, as described and set out

below:

DATE BANK AMOUNT

09/09/96 FBS $ 4,000.00

09/16/96 FBS 2,500.00

09/18/96 FBS 3,000.00

10/30/96 BFNB 50,000.00

All in violation of Title 18, United States Code, Section

1344.”

4 preparation of her presentencing investigation report, the district

court sentenced Oates on April 14, 1997.

Oates objected to the presentence investigation report’s

determination that the relevant loss for the purposes of

calculating a base offense level

—— $59,500

—— improperly included the

full face amount of the time deposit agreement, as Oates had yet to

present the endorsed instrument to the bank’s teller. Accordingly,

Oates argued that her intent to obtain by fraud the entire $50,000

had not been determined by a preponderance of the evidence and that

her offense level should therefore reflect only the amount she had

successfully obtained

—— $9500. Alternatively, Oates argued that she

should, in any event, be entitled to a three-level decrease in her

offense level if the full $50,000 was included in the relevant loss

amount unde r a section of the sentencing guidelines addressing

attempts.

The district court rejected Oates’ argument, and sentenced her

using a base offense level reflecting a loss of $59,500 without a

downward reduction. Oates appeals her sentence. We affirm.5 Discussion

On appeal, Oates makes essentially the same arguments as she

presented to the district court. Although acknowledging that the

district court was entitled to consider the face amount of the time

deposit agreement as a loss under U.S.S.G. § 2F1.1(b)(1)(F), Oates

contends that any increase in her base offense level as a result of

her indorsement of the time deposit agreement must be concomitantly

offset by the three-level reduction provided for by U.S.S.G. §

2X1.1(b)(1), the attempt, solicitation, and conspiracy provision,

because she had not consummated the fraudulent transaction at the

time of her arrest. The government contends that Oates had

completed all steps necessary to convert the time deposit agreement

and that the bank fraud offense was therefore completed, making the

attempt guideline inapplicable.

Oates was convicted of violating the federal bank fraud

statute, which provides, in pertinent part:

“Whoeve r knowingly executes, or attempts to execute, a

scheme or artifice



## — (1) to defraud a financial institution; or

(2 ) to obtain any of the moneys, funds, credits,

assets, securities, or other property owned by, or

under the custody or con trol of, a financial

institution, by means of false or fraudulent

pretenses, representations, or promises;

shall be fined not more than $1,000,000 or imprisoned not

more than 30 years, or both.” 18 U.S.C. § 1344 (West

Supp. 1997).

T he applicable sentencing guideline for section 1344 off enses,

U. S.S.G. § 2F1.1, provides for a base offense level of six. For

losses exceeding $2000, the guideline calls for progressive

increases in the offense level using incremental loss amounts. For2 The district court applied both a two-level increase pursuant

to U.S.S.G. § 2F1.1(b)(2) for “more than minimal planning” and an

additional two-level increase pursuant to U.S.S.G. § 3A1.1(b)

because Oates “knew or should have known that [Mills] was unusually

vulnerable due to age, physical o r mental condition, or that

[Mills] was otherwise particularly susceptible to the c riminal

conduct.” Oates appeals neither such increase.

3 Oates acknowledges on brief that “while the trial court was

entitled to determine, under U.S. S.G. § 2[F]1.1, that Oates

attempted a theft of some portion of the $50,000 certificate of

deposit, it erred in denying Oate s a three-point reduction in

offense level under U.S.S.G. § 2X1.1 for what was clearly an

attempt.”

6 a loss of more than $40,000 (but less than $70,000), the guideline

calls for an increase of five levels. For a loss of more than

$5000 (but less than $10,000), the guideline calls for an increase

of two levels. U.S.S.G. § 2F1.1(b)(1)(C) & (F). The district

court concluded that a five-level increase was merited in light of

the loss amount, which included both the $9500 in successfully

absconded funds and the $50,000 face amount of the fraudulently

endorsed negotiable instrument. 2

Oates’ contention that there was no evidence to support a

f inding that she intended to withdraw the entire actual monet ary

amount represented by the endorsed time deposit agreement gives us

reason to address, once again, t he proper determination of loss

under section 1344 of the federal bank fraud statute. 3 “We review

a district court’s loss determination under the clearly erroneous

standard; as long as the finding is plausible in light of the

record as a whole, it is not clearly erroneous.” U nited States v.

Sowels

, 998 F.2d 249, 251 (5th Cir. 1993), cert. denied

, 114 S.Ct.

1076 (1994).7

This Court has long adhered to the view, supported by the

relevant application note, that the amount of loss for the purpose

of determining a base offense level in U.S.S.G. § 2F1.1(b)(1) is

the dollar amount placed at risk by a defendant’s fraudulent scheme

or artifice. United States v. Brown , 7 F.3d 1155, 1159 (5th Cir.

1993) (“Where a defendant attempts to pass altered or forged

checks, the face value of the checks reflects the intended loss,

even if the money is recovered or returned”); Sowels , 998 F.2d at

251 (using credit limit of stolen credit cards to determine loss

amount u n der U.S.S.G. § 2B1.1(b)(1)(theft)); United States v.

Wimbish

, 980 F.2d 312, 315-16 (5th Cir. 1992) (rejecting check

forger’s contention that, under U.S.S.G. § 2F1.1(b)(1), “the face

value of the checks is neither the probable nor the intended loss,

but merely a possible loss” and stating that “Wimbish put the

victims at risk for the full loss, despite the subsequent recovery

of the amount Wimbish did not receive”), cert. denied

, 113 S.Ct.

2365 (1993); United States v. Hooten , 933 F.2d 293, 298 (5th Cir.

1991) (affirming, in a section 1344 appeal prior to the

promulgation of U.S.S.G. § 2F1.1, the use of “the value of the

potential loss to the credit union”).

Of course, use of the dollar amount of funds or credit placed

at risk to determine the “loss” amount under section 2F1.1(b)(1) is

merely an application of Note 7, which states:

“Consistent wit h the provisions of § 2X1.1 (Attempt,

Solicitation or Conspiracy), if an intended loss that the

defendant was attempting to inflict can be determin ed,

this figure will be used if it is greater than the actual

loss.

. . . For example, if the fraud consisted of

. . . representing that a forged check for $40,000 was4 Oates does not challenge the characterization of the endorsed

time deposit agreement in her f actual resume as a “negotiable

instrument.” Nor, for that matter, does the government challenge

Oates’ implicit contention that she could h ave presented the

endorsed instrument to the bank for incremental redemption.

5 Oates’ claim that, because she may have withdrawn funds in

smaller amounts over time (as she had when she fraudulently

withdrew $9500 in funds from Ms. Mills’ checking account over the

course of nine days, but had not completely depleted that account,

leaving about $500 in it), her “intent” could not have been to take

the entire $50,000, is without merit. Whether, after Oates

fraudulently gained access to funds that did not belong to her, she

had planned to milk her fraud over time through subsequent (and

equally fraudulent) “withdrawals” or had planned instead to

withdraw the money in full immediately does not alter the fact that

the ent i re amount of the deposit was placed at risk by her

intentional, fraudulent act. One who fraudulently endorses a

financial instrum ent by definition intends to gain access to the

funds it represents. In this context, such access to funds is

dispositive. Fraudulent access to funds achieved by a false and

fraudulent making or endorsement of a check or certific ate of

deposit represents a very real loss to both the individual victim

and the financial institution that the federal bank fraud statute

was designed to protect. How Oates planned to utilize this

fraudulently obtained access is simply immaterial to the proper

8 genuine, the loss would be $40,000.” U.S.S.G. § 2F1.1

comment n.7.

We can see no discernible, qualitative distinction between a

fraudulently endorsed certificate of deposit and a forged check for

the purposes of measuring loss under section 2F1.1(b) (1). 4 By

indorsing the instrument, Oates gained access to its face amount.

That Oates had yet to present the instrument for payment in full

—— or

because she arguably had the ability (and was not shown not to have

intended) to roll the amount over or otherwise change the form of

Ms. Mills’ investment

— — is not determinative of the amount of the

“loss” for the purposes of section 2F1.1(b)(1). Oates obtainment

of access to the funds represented by the time deposit agreement

placed the full amount at risk. 5 The entire $50,000 face amount ofapplication of section 2F1.1(b)(1) here.

6 U.S.S.G. § 2X1.1(b)(1) provides, in pertinent part:

“If an attempt, decrease by 3 levels, unl ess the

defendant completed all the acts the defendant believed

necessary for successful completion of the substantive

offense or the circumstances demonstrate that the

defendant was about to complete suc h acts but for

apprehension or interruption by some similar event beyond

the defendant’s control.”

“Substantive offense” is defined in the Application Note to

mean “the offense that the defendant was convicted of soliciting,

attempting , or conspiring to commit.” U.S.S.G. § 2X1.1 comment

n.2.

9 the time deposit agreement was therefore properly considered by the

district court when it determined her base offense level under

U.S.S.G. § 2F1.1(b)(1).

Oates’ principal argument on appeal concerns the applicability

of U.S.S.G. § 2X1.1, 6 the section addressing attempt, solicitation,

or conspiracy. Oates contends that, as she had not presented the

endorsed time deposit agreement to the bank’s teller at the time

she was arrested, her actions amount to attempted bank fraud and

she is therefore entitled to a three-level reduction for attempt.

The governmen t argues that, upon her endorsement of the time

deposit agreement, Oates had completed all of the necessary steps

required for bank fraud (as it pertained to the $50,000 time

deposit agreement). That the police (posing as bank officers)

prevented her from presenting the fraudulently endorsed instrument

for payment, so the argument goes, should not entitle Oates to the

reduction.

We are persuaded that the district court did not err by10

refusing Oates the benefit of a three-level reduction in her base

offense level pursuant to U.S.S.G. § 2X1.1.

Oates relies on two Sixth Circuit cases that arguably support

her position. The first, U nited States v. Watkins

, 994 F.2d 1192,

1194 (6th Cir. 1993), involved a check kiting scheme among five

separate banks. The scheme, in which the defendant deposited

worthless checks into accounts op ened under aliases and then

proceeded to make cash withdrawals against the deposits, had been

interrupted at each bank at various stages of completion. I d. The

defendan t pleaded guilty to bank fraud under section 1344 but

argued, like Oates, that the amount of loss should be determined

not b y reference to the total amount of the worthless checks she

deposited (the instruments of her fraud), but rather by the amount

of cash withdrawn (or attempted to be withd rawn). Id. at 1195.

The district court disagreed, using the full amount of the

fraudulent deposits.

The Sixth Circuit held that, although the full face amount of

the deposits was the relevant loss amount under U.S.S.G. § 2F1.1,

it was neverth eless subject to the “limitation” provided by

U.S.S.G. § 2X 1.1(b)(1)

— — namely, whether the defendant’s conduct

qualified as an “attempt” using withdrawal as a prerequisite of the

completed offense. The Sixth Circuit remanded for a determination

as to whether the check kiter “intended to, or could have,

completely drained her accounts of the funds purportedly contained

therein.” Id. at 1196.

Likewise in United States v. Aideyan

, 11 F.3d 74 (6th Cir.

1993), the Sixth Circuit reversed a district court’s determination11

that the defendant should be held accountable for the full amount

of 5 forged and stolen checks (over $40,000) when only 2 of the

forged checks (under $20,000) had ever been presented for payment,

the other three being found at his re sidence. The Sixth Circuit

held that, although the full amount applied for the purposes of

U.S.S.G. § 2F1.1, the defendant was nevertheless entitled to a

three-level decrease under 2X1.1 because the three unpr esented

checks involved only an attempted offense. Id. at 77.

We do not find the Sixth Circuit cases persuasive here.

Although, arguably, section 2X1.1 would apply to reduce the amount

of loss where the requisite acts necessary to establish a completed

offense had yet to be undertaken, such a view is of little help to

Oates, who at the time of her arrest had performed all required

acts necessar y to access the face amount of the fraudulently

endorsed time deposit agreement and was in a posi tion to do so

immediately.

Furthermore, we consider the Seventh Circuit’s view of the

relationship between sections 2F1.1 and 2X1.1 to be t he more

logical interpretation of the guidelines as they apply to the

determination of loss amounts in this context. In U nited States v.

Yusufu

, 63 F.3d 505, 513-14 (7th Cir. 1995), the defendant was

convicted of altering money orders and checks deposited to a mutual

fund account in an amount totaling $90,000. The defendant appealed

the district court’s decision to include the entire $90,000 amount

as a loss when, in fact, he subsequently drew only one $5000 check

on the account. The defendant urged the Seventh Circuit to adopt

the Sixth Circuit’s Watkins position by recognizing a three-level12

reduction in his base offense level due to the smaller amount he

attempted to realize from his fraud. Rejecting the defendant’s

a rgument, the Seventh Circuit held that the reference to section

2X1.1 was not as a limitation on the application of section 2F1.1’s

loss provision:

“Application Note 7 to § 2F1.1 states that using intended

loss where it is greater than actual loss is consistent

with § 2X1.1, but it does not draw upon § 2X1.1’s attempt

requirements for determining intended loss. Guideline §

2F1.1, along with § 2B1.1

. . . does employ these

provisions of § 2X1.1 to determine offense level in cases of partially complete offenses (e.g., where a completed

fraud or theft was part of a larger fraud or theft that

was not complete). But this has nothing to do with the

amount of loss for a completed crime. It has only to do

with adding additional offense levels for attempted

crimes where the defendant was caught in the middle of a

larger scheme and is convicted only of the crimes he had

completed up to the point where he was caught.” Y usufu

, 63 F.3d at 514.

We agree. Section 2F1.1 references section 2X1.1 for the limited

principle espoused in that section; namely, in the same manner that

an attempted offense triggers the same liability as if the offense

had been completed, the amount of the intended loss determines the

culpable loss (provided the offense is otherwise completed).

Under the plain language of section 1344, Oates was convicted

of a complete offense. No uncompleted offenses were added to

determine her base offense level. Upon her fraudulent endorsement

of the time deposit agreement, Oates gained access to funds through

a scheme or artif ice, thereby defrauding a financial institution

and violating section 1344. S ee United States v. Sak s , 964 F.2d

1514, 151 7-19 (5th Cir. 1992) (“The fraudulent loan transaction

plainly exposed [the bank] and the other lenders to a risk of loss,

which is all that is required under § 1344.”); 18 U.S.C. § 134413

(“Whoever knowingly executes, or attempts to execute, a scheme or

artifice

. . . to defraud a financial institution . . . .”).

Section 2X1.1 is inapplicable to reduce the base offense level of

Oates’ conduct, which indisputably constituted a “complete” offense

of bank fraud with regard to the fraudulently endorsed (but yet-tobe presented) $50,000 instrument. S ee United States v. Studevant

,

116 F.3d 1559, 1564 (D.C. Cir. 1997) (“The [2X1.1(b)(1)] adjustment

does not apply if ‘the defendant completed all the acts the

defendant believed necessary f o r successful completion of the

substantive offense.’ In this case, [the defendant] stole the

checks, filled them out and turned them over to the person he

believed was a fence. By so doing, he completed all of the acts he

thought he had to in order to complete the offense.”). The absence

of presentment

—— which was thwarted by the police

—— does not change

the completed nature of her offense. S ee Yusufu

, 63 F.3d at 514

(distinguishing situation involving a trademark infringement scheme

where crime was complete with regard to sent boxes but not complete

with regard to others).

Conclusion

Because the district court properly inc luded the full face

amount of the fraudulently endorsed time deposit a greement, and

because reduction of the concomitant base offense level was not

warranted by the completed nature of the bank fraud, we AFFIRM

Oates’ conviction and sentence.

AFFIRMED